(Apr 16, 2012) On March 22, 2012, the Constitutional Court of South Africa unanimously declared unconstitutional five laws issued by the legislatures of five of the country's nine provinces. The laws were designed to regulate the financial management of the legislative bodies. They include: the Eastern Cape Provincial Legislature Act 3 of 2009; the Financial Management of the Free State Provincial Legislature Act 6 of 2009; the Financial Management of Gauteng Provincial Legislature Act 7 of 2009; the Financial Management Mpumalanga Provincial Legislature Act 3 of 2010; and the North West Provincial Legislature Management Act 3 of 2007. (Premier, Limpopo Province v Speaker of the Limpopo Provincial Legislature and Others (Limpopo II), CCT 94/10 [2012] ZACC 3, South African Constitutional Court website.)

The Court relied on reasoning from a recent ruling it had issued in a similar case. Also at issue in that case was the constitutionality of a bill aimed at governing the financial management of a provincial legislative body, the Limpopo Provincial Legislature. (Premier, Limpopo Province v Speaker of the Limpopo Provincial Government andOthers (Limpopo I)[2011] ZACC 25, Southern African Legal Information Institute (SAFLII) website.) In finding the bill unconstitutional, the Court noted that the legislative jurisdiction of provincial legislatures was confined to what is provided for under the South African Constitution, and the bill fell outside the ambit of this authority. The relevant provision in the South African Constitution specifically states:

The legislative authority of a province is vested in its provincial legislature, and confers on the provincial legislature the power-…

…(b) to pass legislation for its province with regard to-

(i) any matter within a functional area listed in Schedule 4;

(ii) any matter within a functional area listed in Schedule 5;

(iii) any matter outside those functional areas, and that is expressly assigned to the province by national legislation; and

The Court found that Schedules 4 and 5 of the Constitution did not give the Limpopo legislature the power to legislate on matters relating to its own financial management. (Limpopo I, supra.) That competence is also not conferred by the relevant national legislation, the Financial Management of Parliament Act 10 of 2009 (526 REPUBLIC OF SOUTH AFRICA GOVERNMENT GAZETTE, No. 32152 (Apr. 21, 2009), South African Financial and Fiscal Commission website) or by any provision of the Constitution and the Limpopo legislation was therefore unconstitutional. (Limpopo I, supra.)

In the recent case, the Court found all the Acts in question, except the North West Provincial Legislature Management Act, which included issues beyond matters of financial management of the legislature, to be identical to the bill in Limpopo I and therefore unconstitutional in their entirety. (Limpopo II, supra.)

Having settled the constitutionality issue of four of the five Acts in question, the Court then turned to two additional questions. The first was whether the provisions of the North West Provincial Legislature Management Act dealing with the financial management of the province's legislature, which the Court found were unconstitutional, could be effectively severed from the rest of the Act. This was not an elective exercise for the Court but one mandated by law. (Constitution of the Republic of South Africa, § 172.) The Constitution specifically states that "when deciding a constitutional matter within its power, a court … must declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of its inconsistency … ." (Id.) To answer the question before it, the Court relied on a two-prong test it had developed in an earlier case, which can be summarized as:

The Court noted that even if it would be able to separate the constitutional provisions from the unconstitutional, the possibility of which it doubted, it was not convinced that it was at all possible that the objectives of the law would remain intact. (Limpopo II, supra.) The Court was also gravely concerned that an attempt to effectively sever the constitutional provisions of the law from the rest would invariably infringe upon the principle of separation of powers, as the Court would essentially be engaging in law-making. (Id.) Therefore, it decided to strike down the North West Provincial Legislature Management Act in its entirety.

The second question was whether the order declaring the five Provincial Acts should take effect immediately. The Constitution gives the Court a wide discretion in this regard in that it may, if it sees fit, suspend a ruling invalidating a law "for any period and on any conditions, to allow the competent authority to correct the defect." (Constitution of the Republic of South Africa, § 172.) The Court decided to suspend its ruling invalidating the five Acts for 18 months and ordered the parties in the case to return to the Court in September 2013, to report on steps taken to rectify defects.

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